For the reasons that follow, in our view, notwithstanding Mr Todd's young age, his prior good character and his good prospects of rehabilitation, the totality of his offending was simply too serious to justify anything other than a term of immediate imprisonment. In our assessment, the seriousness of the offences was such that it was not open to the learned sentencing judge to impose a sentence of suspended imprisonment.
In that regard, we are unable to agree with the learned sentencing judge's conclusion that Mr Todd's offending was 'close to the lowest level of example[s] of seriousness of such offending'.[58] On the contrary, while certainly not at the high end of such offending, there were in our view a number of features of 'abuse' in this case, that elevate its seriousness and which place it in a more serious category than those generally rare cases in which a term of suspended imprisonment is appropriate.
It is significant that, in the context of the learned sentencing judge's decision to suspend the terms of imprisonment, her Honour expressly stated that 'what has persuaded me is my findings, that I could not make findings in relation to lack of consent'.[59] Her Honour had also earlier said that 'the question of consent is neutral'.[60]
Properly understood, however, the issue of consent in this case was not 'neutral'. This was not a case, such as that described by Wheeler JA in the passage reproduced at [114] above, for example, where there was an 'absence of evidence concerning consent'. In this case, there was evidence concerning consent and there are a number of conclusions that could be drawn in relation to the willingness, or otherwise, of the victim at the time of the offences.
First, the learned sentencing judge could not be satisfied that the victim consented to any of the acts of sexual penetration, let alone that she enthusiastically consented. That, in and of itself, is a significant matter. This is not a case, such as Sunfly v The State of Western Australia, The State of Western Australia v SJH or Pallister v The State of Western Australia [No 2] where the complainant positively consented to, or indeed instigated, the sexual activity.
Secondly, while the learned sentencing judge could not find beyond reasonable doubt an absence of consent, the reasoning behind that conclusion reveals that any consent by the victim to (at least) the first act of sexual penetration was, at best, 'reluctant'. Mr Todd's evidence itself confirms the victim's general reluctance: she said 'no' and he 'persisted', to the point of taking his penis out of his pants. It is not difficult to appreciate the emotional pressure that a 14‑year‑old girl, affected by alcohol and alone with an older man, would experience in those circumstances.
As we have said above, to apply the label 'reluctant consent' in that context elides the limited capacity of the victim in this case to resist moral, social or emotional pressure. Indeed, in our view, the line between 'reluctant consent' and 'mere submission', to the extent that it exists in a case such as the present, is so thin that it makes little difference to the seriousness of the offending for the purposes of sentence. The circumstances in which Mr Todd persisted with his request for sexual favours involved a significant 'element of abuse'.
Those circumstances included, of course, the significant difference in age between Mr Todd and the victim. He was six years older than her and, while still a young man, had reached adulthood two years earlier. There was nothing to suggest that Mr Todd was, as in some other cases, sexually immature for his age. He said in evidence, for example, that he had just come off a break‑up and thought 'fuck it ... I might as well see if I can get back in the game'.[61] The degree of inequality between Mr Todd and the victim, both in terms of age and maturity, was therefore significant and contributed to the 'element of abuse'.
Putting to one side the issue of actual consent, the messages sent by Mr Todd shortly prior to attending the party on 6 April 2024 reveal a disregard for any of the women and girls that he might seek out for his own gratification that night. While his sense of entitlement and disregard for the women and girls at the party was, of course, not in itself an offence, it does serve to explain his lack of interest, for example, in the victim's age. As the learned sentencing judge found, Mr Todd did not turn his mind to her age, and if he had, he could not reasonably have believed that she was 16 years old. Mr Todd's indifference to the victim's age was reflective of his disregard for her interests and preferences generally.
In addition, the victim was, as the learned sentencing judge said, rendered more vulnerable by her intoxication. While her Honour was not satisfied that the victim was so intoxicated as to be unable to maintain conscious awareness of her surroundings, her level of intoxication would clearly have affected her capacity to respond to the difficult situation in which she found herself. As a result, like so many young victims, the victim in this case unfairly blamed herself for Mr Todd's offending and thought (as she said in her victim impact statement) that she 'should have tried harder to stop it'. That self‑blame and the victim's sense of self‑loathing highlight the damage caused by offending such as Mr Todd's and confirm the point made in relation to 'reluctant consent' at [134] above.
All of these matters, in our view, reveal elements of abuse that significantly increased the seriousness of Mr Todd's offending.
Against that seriousness, of course, there were substantial matters of mitigation in Mr Todd's favour. He pleaded guilty at the first reasonable opportunity, he was still a young man and was of prior good character. His familial and community supports also bode well for his future rehabilitation. Those matters were worthy of real weight and, indeed as we will come to, justified a lesser total effective sentence than the 4 years and 10 months imposed by the learned sentencing judge. What those matters could not justify, however, was that Mr Todd's total effective sentence be suspended. The seriousness of the offences and the need for the sentences to provide general deterrence, and to make clear that the treatment of children in the way that the victim was treated in this case will not be tolerated, required that Mr Todd serve a sentence of immediate imprisonment.
For these reasons, the grounds of appeal have been made out.
[2]
Pursuant to s 31(4) of the Criminal Appeals Act 2004 (WA), this Court has a discretion to dismiss a State appeal against sentence even though a ground or grounds of appeal have been established. The onus is on the State to negate any reason why the residual discretion of this Court not to interfere should be exercised.
Mr Todd did not identify any particular matter in support of a contention that the Court should dismiss the appeal notwithstanding the errors that have been established.
In the present case we are positively satisfied that this Court should not exercise the residual discretion to dismiss the appeal. The sentence imposed by the learned sentencing judge was wrong in type and should be corrected. Having regard to the responsibility of this Court to maintain proper sentencing standards, it may also be observed that a number of the decisions in this area were decided some time ago. It is therefore appropriate for this Court to restate, and confirm, the relevant sentencing standards in this appeal.
[3]
This Court has all the necessary material to resentence Mr Todd. Counsel for Mr Todd submitted that there was no new material that needed to be placed before the Court and, quite properly, accepted that if the appeal was allowed there was no basis for submitting that the period of time that Mr Todd has already spent under the suspended sentences was such that an order for suspension could be reinstated.[62] Nevertheless, we have taken into account the time that Mr Todd has spent under his current sentence in determining the new sentences.
We have already addressed the seriousness of the offences as a whole and the need for general deterrence. In terms of the individual offences, in our view, count 4 was the most serious offence, involving as it did the risk of pregnancy and sexually transmitted infection. Count 2 also had the additional seriousness that it was the first of the acts of sexual penetration, in relation to which the victim expressly communicated her reluctance before Mr Todd persisted.
We have also referred to the significant matters of mitigation. In relation to his pleas of guilty, in our view, it is appropriate to reduce the head sentence for each offence by 15% for Mr Todd's pleas of guilty. While Mr Todd did plead guilty at the first reasonable opportunity, as the learned sentencing judge concluded, the State case was very strong and a number of the utilitarian benefits that would ordinarily follow from pleas of guilty were lessened by the need for a trial of issues (including the need for the victim to give evidence), the results of which did not go substantially in his favour.
The other matters of mitigation, especially Mr Todd's age, are also deserving of significant weight. We have taken all of those matters into account.
In our view, having regard to all relevant sentencing factors, the appropriate sentences for each of the individual counts is as follows:
[4]
(a) in respect of count 1: 1 month imprisonment;
(b) in respect of count 2: 2 years and 9 months imprisonment;
(c) in respect of count 3: 2 years and 6 months imprisonment; and
(d) in respect of count 4: 3 years imprisonment.
[5]
In terms of totality, in our view, the total effective sentence that properly reflects the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to Mr Todd, is one of 3 years and 6 months imprisonment. We would achieve that result by reducing the sentence with respect to count 3 to 6 months imprisonment (for reasons of totality) and ordering that the sentence for count 3 be served cumulatively on the sentence for count 4. The other sentences will be ordered to be served concurrently with the sentence for count 4.
As we have already concluded, we are positively satisfied that this is not an appropriate case to order that any of the terms of imprisonment be suspended.
Mr Todd should be made eligible for parole. The effect of the sentence is that Mr Todd will be eligible for parole after he has served 1 year and 9 months from today. Whether he is released is a matter for the Prisoners Review Board.
The lifetime violence restraining order made by the learned sentencing judge is not set aside and will remain in place.
[6]
For the foregoing reasons, there should be orders as follows:
[7]
Leave to appeal is granted on grounds 1 and 2.
2. The appeal is allowed.
3. The sentences imposed by Cleary DCJ are set aside.
4. The respondent is resentenced on District Court Indictment KAL IND 63 of 2024 as follows:
[8]
(a) in respect of count 1: 1 month imprisonment;
>
> (b) in respect of count 2: 2 years and 9 months imprisonment;
>
> (c) in respect of count 3: 6 months imprisonment (reduced from 2 years and 6 months imprisonment for reasons of totality); and
>
> (d) in respect of count 4: 3 years imprisonment.
[9]
The new sentence for count 4 is the head sentence. The new sentence for count 3 is to be served cumulatively on the sentence for count 4. The new sentences for counts 1 and 2 are to be served concurrently with the new sentence for count 4.
2. The respondent is eligible for parole.
[10]
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
[11]
Principal Associate to the Hon Chief Justice Quinlan
[12]
[1] Millie's real name has been redacted from this extract.
[13]
[34] Kabambi v The State of Western Australia [2019] WASCA 44 (Kabambi) [21] (Buss P, Mitchell & Pritchard JJA).
[43] See Simon v The State of Western Australia [2009] WASCA 10 (Simon v The State of Western Australia) [22] (Steytler P); Nayna v The State of Western Australia [2016] WASCA 169 (Nayna v The State of Western Australia) [45] (Buss P, Mazza & Mitchell JJA).
[22]
[45] Deering v The State of Western Australia [2007] WASCA 212 (Deering v The State of Western Australia) [17] - [18] (Wheeler JA).
[53] The State of Western Australia v SJH [27] (Wheeler JA).
[31]
[54] The State of Western Australia v SJH [15] (Wheeler JA).
[32]
[55] Sunfly v The State of Western Australia [2] (McLure JA, Steytler P & Miller JA agreeing).
[33]
[56] Nayna v The State of Western Australia [15], [19] (Buss P, Mazza & Mitchell JJA).
Legislation Cited (1)
Appeals Act 2004
Cases Cited (4)
It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.
However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney‑General, that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability.
Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory.